H4 to H1 COS

[akhil_agarwal1]

Hi,

My spouse is currently in US and on H4 status. She has a H1B thru Org A. Org A has offices back in India too. She is currently employed with Organization A (India) and on leave without pay.
She recently got an offer from Organization B here in US. She plans to have a cap exempt H1 filed thru Org B (along with COS from H4 to H1).
We are looking for guidance on the following :
Once the COS is approved is it fine if she join Org B after 15 - 20 days ? e.g. if her COS gets approved from 15-Aug then will it be fine if she joins the Org B somewhere near 30-Aug ? Will she be considered out of status between 15-Aug to 30-Aug , or is she good ?
Reason being that once COS is approved she will start her exit process from Org A which will take some time (from 15-20 days to a month maybe).
Thanks.

[raghvi]

Hi,

My spouse is currently in US and on H4 status. She has a H1B thru Org A. Org A has offices back in India too. She is currently employed with Organization A (India) and on leave without pay.
She recently got an offer from Organization B here in US. She plans to have a cap exempt H1 filed thru Org B (along with COS from H4 to H1).
We are looking for guidance on the following :
Once the COS is approved is it fine if she join Org B after 15 - 20 days ? e.g. if her COS gets approved from 15-Aug then will it be fine if she joins the Org B somewhere near 30-Aug ? Will she be considered out of status between 15-Aug to 30-Aug , or is she good ?
Reason being that once COS is approved she will start her exit process from Org A which will take some time (from 15-20 days to a month maybe).
Thanks.

Does she have a previous approved H1 petition to claim cap exemption?

Yes she will be considered out of status for those 15 days. Remember while on H1 status , if not getting paid one goes out of status.

This is my opinion not legal advice.

[allcreditsource]

H1 Visa Requires higher education and skilled knowledge.

[akhil_agarwal1]

Hi Raghvi,

Thanks for your inputs.
Yes, she has a previous approved H1 petition to claim cap exemption?

If she lets herself out of status for those 15 days (or bit more), but after that she will join Employer B (and they will start her payroll). So she should be good then. Right ? Or can this 'out of status' thing can be an issue down the line (may be during her GC Filing) ?

[shervin143]

Out of status can always be an issue. It depends on the officer who handles your case. It can be an issue while filing the H1B extension or while attending the visa interview or while filing the GC. It can also be completely overlooked. It totally depends on the officer who handles your case. It is not hard to figure out the out of status period when someone looks at the W2.

Hi Raghvi,

Thanks for your inputs.
Yes, she has a previous approved H1 petition to claim cap exemption?

If she lets herself out of status for those 15 days (or bit more), but after that she will join Employer B (and they will start her payroll). So she should be good then. Right ? Or can this 'out of status' thing can be an issue down the line (may be during her GC Filing) ?

[raghvi]

Out of status can always be an issue. It depends on the officer who handles your case. It can be an issue while filing the H1B extension or while attending the visa interview or while filing the GC. It can also be completely overlooked. It totally depends on the officer who handles your case. It is not hard to figure out the out of status period when someone looks at the W2.

Agreed, if ignored good, but if questioned you must have a valid reason for why she decided to join work 15-20 days later than the COS date.

This is my opinion not legal advice.

[akhil_agarwal1]

Thanks Raghvi and Shervin for your inputs. So what will be the best course of action for her (given the following scenario) :

She is currently in US and on H4 status. She has a H1B through Org A. Org A has offices back in India too. She is currently employed with Organization A (India) and on leave without pay.
She recently got an offer from Organization B here in US. She plans to have a cap exempt H1 filed through Org B (along with COS from H4 to H1). Once the COS is approved she will have following 2 options (as per our understanding):
1. She joins Org B immediately. If she joins immediately then she will be in a sort of 'dual employment' (i.e. actively working with Org B in USA, and simultaneously coordinating the exit process from Org A in India). So till the time she is relieved from Org A she will be in Dual employment. Right ?
2. Second option being to exist Org A (India) before joining Org B (US). This will result in 'out of status' as she will drop her papers in Org A only when her COS is approved with Org B, and the exit process from Org A (India) might take upto a month or so.

[raghvi]

Thanks Raghvi and Shervin for your inputs. So what will be the best course of action for her (given the following scenario) :

She is currently in US and on H4 status. She has a H1B through Org A. Org A has offices back in India too. She is currently employed with Organization A (India) and on leave without pay.
She recently got an offer from Organization B here in US. She plans to have a cap exempt H1 filed through Org B (along with COS from H4 to H1). Once the COS is approved she will have following 2 options (as per our understanding):
1. She joins Org B immediately. If she joins immediately then she will be in a sort of 'dual employment' (i.e. actively working with Org B in USA, and simultaneously coordinating the exit process from Org A in India). So till the time she is relieved from Org A she will be in Dual employment. Right ?
2. Second option being to exist Org A (India) before joining Org B (US). This will result in 'out of status' as she will drop her papers in Org A only when her COS is approved with Org B, and the exit process from Org A (India) might take upto a month or so.

Option 2 seems fine, she would go out of status, if she does not work for B from COS effective date. I doubt question of dual employment comes into picture, as she is not getting paid from A, even during the exit process.

But if you really want to avoid "dual employment" follow Option 3 : Resign from A, finish exit formalities while continuing to be on H4. Once exit from A, then apply for H4 to H1 COS.

This is my opinion not legal advice.